The California Office of Administrative Law recently approved a suite of amendments to the CEQA Guidelines, which are now in effect. Latham wrote about these amendments last year, when the Natural Resources Agency began the rulemaking process under the Administrative Procedures Act. During this rulemaking process, the California Natural Resources Agency (Agency) considered comments on the proposed amendments from members of the public, responded to those comments, and made some slight revisions to the amendments. The final adopted text of the amendments is available here.

Relevant revisions to the amendments made during the rulemaking process include:

Section 15064.4 (Greenhouse Gas (GHG) Impacts): The Agency clarified that a project’s incremental contribution to climate change impacts should not be compared to state, national, or global GHG emissions to determine whether the project’s emissions are cumulatively considerable. Further, if using consistency with state goals and policies as a means to determine significance, the lead agency should explain how the project’s emissions are consistent with those goals.

Section 15125 (Baseline): The Agency clarified that the procedural requirement to justify a baseline other than existing conditions does not apply to reliance on historic conditions. Rather, the procedural requirement applies only to use of future conditions as a sole baseline.

Section 15126.4 (Deferral of Mitigation): The Agency proposed to clarify when mitigation may be permissibly deferred until after project approval, consistent with case law. In response to comments, the Agency clarified that if details are deferred, a lead agency must identify at least the types of measures that are known to be feasible and that will achieve an adopted performance standard — rather than simply provide a list of possible mitigation actions that will be considered, analyzed, and potentially incorporated.

Additionally, the Agency’s shift in approach for assessing a project’s potential transportation impacts from Level of Service to Vehicle Miles Traveled will apply prospectively as described in CEQA Guidelines section 15007. A lead agency may elect to be governed by the new Section 15064.3 immediately, but beginning on July 1, 2020, the requirements to analyze Vehicle Miles Traveled will apply statewide.

The purpose of this communication is to foster an
open dialogue and not to establish firm policies or
best practices. Needless to say, this is not a substitute
for legal advice or reading the rules and regulations
we have summarized. In any particular case, you should
consult with lawyers at the firm with the most experience
on the topic. Depending on your specific situation,
answers other than those outlined in this blog may be
appropriate. Your use of this blog site alone creates
no attorney client relationship between you and Latham & Watkins LLP.
Do not include confidential information in comments or other
feedback or messages left on the Environment, Land & Resources Blog, as these
are neither confidential nor secure methods of communicating
with attorneys.

Latham & Watkins operates worldwide as a limited liability partnership organized under the laws of the State of Delaware (USA) with affiliated limited liability partnerships conducting the practice in France, Italy, Singapore, and the United Kingdom and as an affiliated partnership conducting the practices in Hong Kong and Japan. Latham & Watkins operates in South Korea as a Foreign Legal Consultant Office. Latham & Watkins works in cooperation with the Law Office of Salman M. Al-Sudairi in the Kingdom of Saudi Arabia.